Judge Carey

In re New Century TRS Holdings Inc.

Debtors filed a motion pursuant to 11 U.S.C.S. §§ 105(a) and 362(a) for an order enforcing the automatic stay against the Internal Revenue Service (IRS) and granting related relief. The debtors asked the court to enter an order directing the IRS to release a tax refund to the debtors. The IRS opposed the motion, arguing that the court lacked jurisdiction to consider it.
Ruling: 
Section 106 does not provide independent basis for debtor to obtain release of IRS refund.
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Commercial case opionion summary, case decided on February 14,2008, LexisNexis #0308-071

In re Touch Am. Holdings Inc.

Former officers and directors of bankruptcy debtors filed proofs of claim for reimbursement, indemnification, and contribution based on two civil actions against the officers and directors for breach of fiduciary duty and fraud. The trustee under the debtors' confirmed plan moved for summary judgment of subordination with regard to one action and disallowance with regard to the second action.
Ruling: 
Claim of debtor's former officers and directors under ERISA were subject to subordination and actions for indemnification were subject to disallowance.
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Commercial case opionion summary, case decided on January 18,2008, LexisNexis #0208-135

In re Exide Techs.

Creditor, a retired employee of the debtor, moved for the enforcement of a selective executive retirement agreement plan ("SERP"), under which the debtor still owed him seven of the total of ten payments. The debtor objected to the relief requested, arguing the SERP contract was not assumable under 11 U.S.C. § 365, because it was not an executory contract.
Ruling: 
Selective executive retirement agreement was not an executory contract and not subject to assumption.
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Commercial case opionion summary, case decided on December 05,2007, LexisNexis #1207-127

In re Summit Metals Inc.

A debtor filed for relief under chapter 11. A consultant and an attorney filed applications for the allowance of fees and expenses as administrative expenses in the proceeding, pursuant to 11 U.S.C. § 503(b). The chapter 11 trustee, the U.S. trustee, and the committee of unsecured creditors filed objections.
Ruling: 
Consultant and attorney denied administrative expense fees for services except for attorney's fees as chair of creditors'committee.
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Commercial case opionion summary, case decided on December 04,2007, LexisNexis #1207-129

In re Winstar Communs.

The law firm and its consulting firm, both retained to complete commercial litigation on behalf of the chapter 7 trustee, moved for the authority to enter into an agreement with a lender to "hedge" a portion of their anticipated contingency fees for the litigation, which was on appeal. The United States trustee filed an objection to the motion, claiming the agreement violated the prohibition of fee sharing of 11 U.S.C. § 504.
Ruling: 
Agreement between law firm, consulting firm and lender to "hedge" contingency fees in litigation for chapter 7 trustee denied as "fee sharing."
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Commercial case opionion summary, case decided on December 04,2007, LexisNexis #1207-131

In re Student Fin. Corp.

Movant, the chapter 7 trustee, sought an order granting summary judgment against claimant creditor, who had moved to compel debtor to assume or reject a lease for a telephone system, to compel immediate payment of certain rent and lease obligations or, in the alternative, to provide adequate protection. The creditor also sought relief from the automatic stay.
Ruling: 
Lease on which debtor had been current had not terminated prior to filing date so that creditor could make claim for rejection damages.
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Commercial case opionion summary, case decided on November 28,2007, LexisNexis #0108-025

Broadway Advisors LLC v. Hipro Elecs. Inc. (In re Gruppo Antico Inc.)

Defendant filed a motion for judgment on the pleadings in chapter 11 debtor's adversary proceeding, which alleged that transfers made by debtor to defendant within 90 days prior to the bankruptcy petition date were avoidable as preferences pursuant to 11 U.S.C. §§ 547(b) and 550.
Ruling: 
"Mere conduit" defense to avoidance applied to entity that forwarded debtor's payments to the company it serviced.
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In re Exide Techs.

Debtors and debtors in possession sought approval from the court to reject certain agreements entered into with a purchaser for the sale of substantially all of debtor's industrial battery division.
Ruling: 
Motion to reject certain agreements for the sale of a division of debtor to purchaser was granted since the agreements were deemed executory.
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Miller v. MBM Corp. (In re Ameriking Inc.)

Plaintiff chapter 7 trustee filed an original complaint seeking recovery from defendant transferee of eight alleged transfers aggregating $1,222,901 under 11 U.S.C. §§ 547, 548, 502(d) and 550. The amended complaint asserted the same claims as the original complaint, but added a new two-page exhibit "B," detailing 56 apparently additional transfers totaling $4,959,980. The trustee moved for leave to file a second amended complaint.
Ruling: 
Trustee was denied a motion to further amend a transfer avoidance action complaint on procedural grounds and since the proposed new cause of action was barred by Code section 549(d)'s two-year limitations period.
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In re Garden Ridge Corp.

Before the court in a chapter 11 matter was debtor's Seventh Omnibus Objection (Substantive) to Administrative and Priority Claims Pursuant to 11 U.S.C. §§ 105 and 502(b) and Fed. R. Bankr. P. 3001, 3003, 3007, and two responses thereto filed by claimants, former employees of debtor.
Ruling: 
Claims by debtor's two former employees were deemed allowed as unsecured priority claims since their employment ended during the 90-day priority period and the right to receive severance payments was earned no earlier than on termination.
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